Citation: Clavel v Savage & 4 Ors [2004] NSWSC 292
Court: Supreme Court of New South Wales, Common Law Division
Date: 15 April 2004
Judge(s): Master Harrison
Background
The two plaintiffs are a married couple who resided at Mackerel Beach in New South Wales. The first and second defendants were their neighbours at the same location. The third defendant was the State of New South Wales, sued in its capacity as the employer vicariously liable for the conduct of identified NSW Police officers (the fourth and fifth defendants, who had not been served at the time of the hearing).
The plaintiffs alleged that the defendants engaged in an overall course of conduct designed to force them to leave their home. Against the State, they pleaded five separate counts of malicious prosecution arising from a series of charges brought against the first plaintiff between 1999 and 2000, in each of which he was ultimately vindicated. The plaintiffs also brought claims relating to assault, false imprisonment, abuse of process, and emotional distress.
The first and second defendants moved to have the proceedings against them dismissed entirely. The State separately sought either dismissal or the striking out of substantial portions of the amended statement of claim (ASC).
Legal Issues
- Whether the proceedings and the ASC disclosed no reasonable cause of action and should be struck out or dismissed under Part 15 r 26 of the Supreme Court Rules 1970 (NSW)
- Whether the five counts of malicious prosecution were adequately pleaded against the State
- Whether the claims for abuse of process, assault, false imprisonment, and emotional distress (including claims brought by a secondary victim) were sufficiently pleaded
- Whether the second plaintiff had adequately verified the ASC and could maintain the malicious prosecution counts alongside the first plaintiff
Decision
Master Harrison began by confirming the high threshold that must be satisfied before a court will summarily dismiss proceedings. Drawing on the High Court authorities in General Steel and Webster, her Honour noted that summary dismissal is reserved for claims that are so clearly untenable they cannot possibly succeed, and the power must be exercised with exceptional caution.
Applying that standard to the malicious prosecution counts, Master Harrison found the claims were adequately pleaded. The first plaintiff had been charged on five separate occasions and was vindicated each time, providing a factual foundation for the pleading. Her Honour was not persuaded the claims were hopeless, even if the ASC was not a perfect document.
On the additional tort claims, including assault, false imprisonment, abuse of process, and emotional distress (including as a secondary victim), the court found these causes of action were also adequately pleaded. Her Honour noted the relevant authorities supporting liability to a secondary victim and concluded the pleading could proceed to trial.
Two concessions made by the plaintiffs did, however, require correction. First, a malicious prosecution count can only be maintained by the plaintiff who was actually charged, not jointly by both plaintiffs. Second, the second plaintiff had not verified the ASC, which was not a minor matter. Master Harrison granted leave to file a further amended statement of claim to address both issues within 21 days, and dismissed all notices of motion.
Orders Made
- Leave granted to the plaintiffs to file and serve a further amended statement of claim (FASC) within 21 days.
- The notices of motion filed by the first and second defendants (16 October 2003) and the third defendant (9 October 2003) dismissed.
- The defendants are to pay the plaintiffs' costs of the motions, except that the plaintiffs are to pay the costs thrown away by the amendments to the ASC.
Key Takeaways
- Summary dismissal under Part 15 r 26 of the Supreme Court Rules requires that a claim be so clearly untenable that it cannot possibly succeed; adequately pleaded causes of action, even if imperfectly drafted, will survive such a motion.
- A malicious prosecution count can only be maintained by the plaintiff who was personally the subject of the relevant criminal charges, not jointly by a co-plaintiff who was not charged.
- Where multiple defendants bring separate strike-out motions that are largely unsuccessful, the costs consequences will generally follow that outcome, even where the plaintiff conceded some amendments were needed before the hearing.
- Liability for emotional distress to a secondary victim was treated by the court as sufficiently established in the case law to support a pleading that could go to trial, rather than one that should be summarily dismissed.
- The failure of a plaintiff to verify a statement of claim is not treated as a minor or technical defect; the Supreme Court required the second plaintiff to remedy the omission as a condition of proceeding.
Legislation and Cases Referenced
Legislation:
- Law Reform (Vicarious Liability) Act 1983 (NSW)
- Supreme Court Rules 1970 (NSW), Part 15 r 26
Cases:
- Air Services Australia v Zarb (Unreported, NSWCA, 26 August 1998)
- Dey v Victorian Railways Commissioners (1949) 78 CLR 62
- General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
- Webster & Anor v Lampard (1993) 177 CLR 598
- Frost v The Speaker of the Legislative Assembly of New South Wales [2001] NSWSC 639
- Williams v Spautz (1991-1992) 174 CLR 509
- Northern Territory of Australia v Mengel (1995) 195 CLR 307
- Bunyan v Jordan (1937) 57 CLR 1
- Wilkinson v Downton (1897) 2 QB 57
- Johnson v The Commonwealth (1927) 27 SR (NSW) 133
- Battista v Cooper (1976) 14 SASR 225
- Pham v Lawson (1997) 68 SASR 124
- Nye v State of New South Wales & Ors [2003] NSWSC 1212
- Trobridge v Hardy (1955) 94 CLR 147
- Attorney General (NSW) v Spautz [2001] NSWSC 66